The Supreme Court’s landmark decision earlier this year in CCC now permits ‘lost years’ claims by children. Since then, claimants and defendants have been waiting to see how courts will apply the ruling and the likely amount of damages for ‘lost years’ claims by children.
The High Court’s judgment in JBX v Frimley Health NHS Foundation Trust (JBX), handed down on 4 September 2026, appears to be the first reported case in which a court has applied the Supreme Court's recent ruling in a ‘lost years’ claim by a child. JBX therefore provides an indication of how courts will approach ‘lost years’ claims by children.
Prior to the Supreme Court’s decision in CCC, children were not entitled to recover damages for the ‘lost years’, i.e., damages for future loss of earnings between the claimant’s current estimated date of death and estimated date of death absent the admitted negligence, on the basis the loss was too speculative and they had no dependants.
However, in February 2026 the Supreme Court delivered a majority judgment in CCC confirming that children can recover damages for the ‘lost years’ because damages in tort are designed to compensate claimants for their own loss (not anyone else’s loss) and it is irrelevant whether claimants have dependants or not in claims for ‘lost years’.
The Supreme Court confirmed that evidence in relation to loss of earnings in claims by children would have to be considered in the same way as in claims by adults. However, ‘lost years’ claims by children are inherently speculative (because there is rarely evidence of their likely career path or earnings, or of their likely expenditure but for the negligence) so how are the courts to determine such claims where there is a lack of evidence?
JBX v Frimley Health NHS Foundation Trust
The claim related to mismanagement of JBX’s asthma in January 2018 when he was eight years old, which resulted in cardiac arrest and catastrophic hypoxic brain injury. The trust admitted liability and the parties agreed the avoidable brain injury reduced JBX’s life expectancy to age 25.5. The claimant sought damages for future loss of earnings in relation to the ‘lost years’, i.e. for a period after his predicted life expectancy.
The limited evidence available to the court on what the claimant might have earned was that the claimant’s father is a sales manager in the City of London, with gross earnings of between £160,000 and £221,000 in recent years, whilst his brother had left school at 16 and earned approximately £14,000 per year as an apprentice.
High Court’s decision in JBX
The court found there was insufficient evidence to assess the claimant’s loss of earnings based on his father's income due to limited school reports of his pre-injury ability being available and because the claimant’s elder brother had not followed his father to work in sales. However, the court acknowledged there was no reason to suppose the claimant would have moved away from the southeast of England, where unemployment is below the national average. The court ultimately determined that the appropriate multiplicand for loss of earnings was the average non-manual salary in the Annual Survey of Hours and Earnings.
In respect of the claimant’s own living expenses (which he would have spent on solely himself during the period of ‘lost years’ if he had not been injured), whilst the trust relied on comments by Lord Burrows in his judgment in CCC in which he suggested that “the percentage discount is high because of the high degree of uncertainty involved” , in JBX the court rejected the trust's proposed 90% discount. Instead, the court applied a conventional 50% discount in respect of the claimant’s living expenses during the ‘lost years’ on the assumption that the claimant probably would have had his own family absent the admitted negligence and so would have spent 50% of his earnings on himself.
The court also decided that the claimant would have retired at age 70 rather than at age 68, as pleaded by the trust, given the increasing state retirement age.
The multiplier to be used for the ‘lost years’ claim in JBX is yet to be agreed between the parties, following judgment on the appropriate multiplicand, and therefore damages awarded for this head of loss were not determined at trial and the amount recovered is not publicly known.
Evidential difficulties and the court’s approach
Ultimately, both claimants and defendants are likely to find it difficult to adduce compelling evidence on future loss of earnings due to the uncertain nature of ‘lost years’ claims by children. However, the judgment in JBX suggests courts will take a cautious and commonsense approach to determining the multiplicand when there is no persuasive evidence on the issue. Speculative figures are unlikely to be sufficient for courts to depart from applying average salaries according to ASHE or the usual 50% percentage discount for living expenses. Although this may lead to over-compensation or under-compensation in some cases, it is difficult to see how courts could take an alternative approach given the inherent evidential difficulties in ‘lost years’ claim by children.
For further information on the developments in Healthcare and Large Loss, please contact our healthcare solicitors or our catastrophic personal injury solicitors.
